United States District Court, N.D. Ohio
BARBARA CALLAWAY, on behalf of herself and all others similarly situated, Plaintiffs,
DENONE LLC, et al., Defendants.
OPINION & ORDER [RESOLVING DOC. 52]
S. GWIN, UNITED STATES DISTRICT JUDGE
servers at Northern Ohio Denny's restaurants, bring this
suit against Defendants alleging Fair Labor Standards Act
(“FLSA”) violations. On March 8, 2019, the Court
conditionally certified the suit as a collective action.
Defendants now move to decertify the collective
following reasons, the Court DENIES
operate a Northern Ohio Denny's restaurant chain.
Plaintiffs work or formerly worked as servers at
Defendants' restaurants. They claim that they Defendants
paid them a sub-minimum wage in violation of the FLSA. They
also argue that the FLSA's tip-credit provision, which
allows an employer to partially credit employee tips towards
its minimum-wage obligations, does not apply.
allege three categories of FLSA violations: first, they claim
that Defendants did not notify them that they were being paid
under to the FLSA's tip-credit provisions. Second, they
allege that they performed excessive nontipped side work,
preventing Defendant from using the FLSA's tip-credit
provision. Third, they allege that Defendants
unlawfully used their tip-credit pay rate to calculate their
March 7, 2019, the Court conditionally certified a collective
All individuals who worked at any time during the past three
years at any restaurant owned or operated by Defendants in
the job position of server and who were paid for their work
on an hourly basis according to the tip credit provisions of
the FLSA, (i.e. an hourly rate less than the applicable
minimum wage, excluding tips).
now move to decertify the collective action.
may bring a collective action to enforce the Fair Labor
Standards Act “on behalf of . . . themselves and other
employees similarly situated.” To determine whether the
employees are similarly situated, the Court considers
“(1) the factual and employment settings of the
individual plaintiffs, (2) the different defenses to which
the plaintiffs may be subject, and (3) the degree of fairness
and procedural impact of certifying the action as a
collective action.” The “heart of the matter”
is whether the collective plaintiffs can bring their claims
“based on representative, rather than personal,
evidence.” Plaintiffs shoulder the burden of showing
they are similarly situated.
typically proceeds in two stages. At the first
“notice” stage, the plaintiff must make a
“modest factual showing” that their position is
like the positions held by putative collective
members. At this second stage, following discovery,
“trial courts examine more closely the question of
whether particular members of the class are, in fact,
Plaintiffs' Factual and Employment Settings
who all held the same job title, have submitted declarations
stating that Defendants regularly required them to perform
substantial amounts of nontipped side work. The
declarations from servers at different locations state
working conditions are similar across Defendant-owned
restaurants. Additionally, Plaintiffs submit a Defendant
notice recommending that servers pick up shifts at
neighboring Denny's restaurants, suggesting that job
duties were similar across locations.
though Plaintiffs are not required to demonstrate that their
claims flow from a single FLSA-violating policy,
they provide substantial evidence that Defendants had a
standard policy requiring Plaintiffs perform nontipped side
work each shift. Defendants' training materials
explicitly detail how servers should be trained to perform
the side work described in the complaint. They also
include detailed side work maps stating that “all side
work must be completed before leaving your
shift . . . and checked by management
team.” Opt-in Plaintiffs testified in their
depositions that they consulted these side work checklists
when performing the work on shift.
Defendants' own training materials and the
Plaintiffs' consistent testimony, Defendants'
contention that “DenOne's restaurants do not use a
standardized checklist or form for assigning side work to
each server on a regular basis, and DenOne does not have a
policy regarding assigning side work to
servers” is not believed.
offer two arguments in support of decertification.
Defendants' first argument is that the opt-in
Plaintiffs' deposition testimony “refute[s] many,
if not all, of the allegations in the complaint, ”
because their disposition testimony differed “as to
what each of them considered to be work for which
they should be paid the tip-credit minimum
wage.” This argument is completely irrelevant.
FLSA liability and collective action certification do not
depend on individual employees' personal views about how
they should be compensated.
also argue that Plaintiffs are not similarly situated because
the amount of nontipped side work varied. The deposed opt-in
Plaintiffs generally agreed that the quantity of side work
varied depending on the manager, shift, location, day,
staffing, and restaurant busyness. Plaintiffs argue that
these variations do ...